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Norinder v. Fuentes

November 17, 2010

IN RE THE APPLICATION OF MAGNUS NORINDER, PETITIONER,
v.
SHARON FUENTES, RESPONDENT.



The opinion of the court was delivered by: Stiehl, District Judge

MEMORANDUM AND ORDER

This matter is before the Court on petitioner's motion for attorney's fees and costs (Doc. 60) to which the respondent has filed a response (Doc. 61) and the petitioner a reply (Doc. 62). In addition, petitioner has filed a supplement to his motion (Doc. 65). Respondent has not filed a response to the supplement.

BACKGROUND

After more than six days of trial in this case, the Court entered an Order granting the Petition for Return of Child (Doc. 3) under The Convention on the Civil Aspects of International Child Abduction, done at the Hague on October 25, 1980 ("Convention"), T.I.A.S. No. 11,670, 1343 U.N.T.S. 89 and the International Child Abduction Remedies Act ("ICARA"), 42 U.S.C. § 11601 et seq. (See, Order of Return at Doc. 51 and Memorandum and Order at Doc. 52). The Court determined that JRN, the minor child, was removed from Sweden by the Respondent in violation of the Petitioner's rights of custody (See Doc. 52). Respondent has appealed that decision, and it is currently pending before the United States Court of Appeals for the Seventh Circuit. Norinder v. Fuentes, No. 10-2753.

A. PAYMENT OF COSTS AND FEES UNDER THE HAGUE CONVENTION

The payment of attorneys fees to prevailing parties is specifically provided for in the Hague Convention which is incorporated in ICARA, 42 U.S.C. § 11607(b)(3), which provides:

Any court ordering the return of a child pursuant to an action brought under section 11603 of this title shall order the respondent to pay necessary expenses incurred by or on behalf of the petitioner, including court costs, legal fees, foster home or other care during the course of proceedings in the action, and transportation costs related to the return of the child, unless the respondent establishes that such order would be clearly inappropriate.

Id. (emphasis added). The purpose of this section is "to restore the applicant to the financial position he or she would have been in had there been no removal or retention . . . . " Hague International Child Abduction Convention; Test and Legal Analysis, 51 Fed.Reg. 10494-01, 10511 (Mar. 26, 1986). Notably, the language of ICARA is mandatory, the prevailing party is entitled to costs, including, inter alia, attorneys fees, and the Court shall order those costs and fees paid. § 11607(b)(3).

1. Calculating Attorney's Fees

Generally, the method used to calculate proper attorney's fees for Hague Convention cases is the lodestar method which is the test used in similar fee-shifting statutes. See Wasniewski v. Grzelak-Johannsen, 549 F.Supp.2d 965, 971 (N.D. Ohio, 2008); Neves v. Neves, 637 F.Supp.2d 322, 393-40 (W.D.N.C. 2009); Distler v. Distler, 26 F.Supp.2d 723, 727 (D.N.J.1998); Freier v. Freier, 985 F.Supp. 710, 712 (E.D.Mich.1997); Berendsen v. Nichols, 938 F.Supp. 737, 738 (D.Kan.1996).

The formula applied under the lodestar method is to determine "the attorney's reasonable hourly rate multiplied by the number of hours reasonably expended." Schlacher v. Law Offices of Phil J. Rotche & Assocs., 574 F.3d 852, 856 (7th Cir. 2009) (citing Hensley v. Eckerhart, 461 U.S. 424, 433-37 (1983)).

This final determination may be adjusted based on: the time and labor required; the novelty and difficulty of the questions; the skill requisite to perform the legal services properly; the preclusion of employment by the attorney due to acceptance of the case; the customary fee; whether the fee is fixed or contingent; time limitations imposed by the client or the circumstances; the amount involved and the results obtained; the experience, reputation, and ability of the attorneys; the "undesirability" of the case; the nature and length of the professional relationship with the client; and awards in similar cases.

Mathur v. Bd. of Trs. of So. Ill. Univ., 317 F.3d 738, 742 n. 1 (7th Cir. 2003). Petitioner has requested reimbursement for direct legal fees as well as trial costs totaling $174,435.45. Petitioner has included exhibits supporting these claims.

B. RESPONDENT'S CHALLENGES TO THE MOTION FOR FEES AND COSTS

Respondent challenges a number of the charges for which the petitioner seeks reimbursement, including: travel time and costs for petitioner's attorney and paralegal; costs and time of the paralegal at the hearings; petitioner's use of expert witnesses; number of hours petitioner's counsel spent on the case and her billing rate; the lack of specificity in petitioner's counsel's charges; travel costs for petitioner's sister and daughter; the need for a Swedish language interpreter at the hearings; and petitioner's dire financial situation. The Court will address the merits of each assertion in turn.

For purposes of review, the Court has broken down the requested fees and costs by month, and by person.

MONTHPERSON/RATENUMBER OF HOURSCATEGORY (Summary of general activity charged)TOTAL SOUGHT in $- April, 2010Laura Dale $375.00.75Initial contact/File preparation/review281.25 April, 2010Liza Greene/$350.00.25File review87.50 April, 2010Susan Myres/$400.00.50Case instructions200.00 April, 2010Elizabeth Bates (paralegal)/$125.002.00Email review, research250.00 May, 2010Laura Dale $375.0043.75file preparation/contact with Central Authority/coordinate file translation/client contact16,406.25 May, 2010Heather Benzenhoefer/$175.0010file prep/email review/response1,750.00 May, 2010Heather Benzenhoefer time not charged4.00 0.00 May, 2010Liza Greene $350.00.50Email review from client/legal team175.00 May, 2010Liza Greene time not charged6.25 0.00 May, 2010Elizabeth Bates $125.0016.25File preparation/email review and response2,031.25 May, 2010Elizabeth Bates time not charged5.75 0.00 June, 2010Laura Dale $375.00136.00Trial prep/trial and travel time/client meeting/witness review/brief preparation and review51,000 June, 2010Denise Khoury $200.00.25Research50.00 June, 2010Heather Benzenhoefer $175.001.25Review of client emails/meet with L. Dale218.75 June, 2010Heather Benzenhoefer time not charged1.00 0.00 June, 2010Liza Greene $350.002.25Conferences with L. Dale Instructions to E. Bates re expert witnesses and client questions787.50 June, 2010Liza Greene time not charged1.25Client e-mail review and staff e-mail review0.00 June, 2010Susan Myres $400.001.50Amendments to trial brief/conference600.00 June, 2010Elizabeth Bates $125.00124.50Trial preparation/attend trial/review of e-mails/client15,562.50 June, 2010Elizabeth Bates time not charged2.25 0.00 July, 2010Laura Dale47.25File preparation/final hearing/travel17,718.75 July, 2010Elizabeth Bates48.25File preparation/final hearing6,031.25 July, 2010Liza Greene1.00Conf with L. Dale re emergency motion for stay post hearing350.00

COSTSPERSONAMOUNT Travel to/from United States in June, 2010Petitioner & Daughter, Rebecca3,539.00 Travel to/from United States June, 2010Petitioner's sister2,504.47 Travel to/from United States July, 2010Petitioner and Daughter, Rebecca4,078.87 Travel to Sweden July, 2010Minor Child (After order of return)3,257.572 Hotel Costs June 20-July 1, 2010Petitioner3,873.09 Hotel Costs June 20-24Rebecca1,166.50 Hotel Costs July 20-22Petitiooner661.95 Hotel Costs (Amsterdam)Petitioner/child128.12 Taxi costs to/from airport-SwedenPetitioner164.40 Taxi- AmsterdamPetitioner and minor child83.20 Translation fees - foreign documentsfor Hague Convention filings13,785.87 Interpreter fees & travel June, 2010June Hearing (interpreter used)3,786.90 Interpreter fees & travel July, 2010July hearing (interpreter present but not used)4,763.00 Expert feesSweger-preparation and live testimony5,338.30 Expert feesOsterberg-pretrial assistance with Swedish law9,501.07 Private InvestigatorSurveillance, investigation, May, 2010735.43 Dr. VerkanderExpert Fee (note, no documentation provided)5,838.00 OTHER COSTSMONTHAMOUNT Copying/initiation feesApril, 201087.83 Copying/research costsMay, 201090.83 Copying/research costsJune, 20101,105.38 Travel/lodging/business services (hotel)/copyingJuly, 201014,341.47

1. Travel Time for Petitioner's Attorney and Her Paralegal

The respondent states that the amount sought by petitioner's counsel for her travel and for that of her paralegal, totaling $26,234.94, is an unreasonable charge and that the petitioner's attorney should have hired local counsel and thereby reduced costs. Petitioner and her paralegal charged approximately thirty six hours for travel time between Houston and St. Louis. Respondent seeks to have the Court exclude approximately $18,000 for travel related costs.

Ironically, Respondent's counsel is not from this local legal community either, but is an attorney with his offices in Chicago, Illinois. The travel time for Petitioner's counsel was billed at the same rate as trial preparation and trial time.

Respondent also claims that Petitioner's counsel should not have had her paralegal travel with her to the hearings in this District, also saving costs. It is a common practice to use a paralegal to assist a lead counsel with the performance of pretrial and trial assistance tasks and administrative tasks, such as contacting and coordinating witnesses, organizing exhibits, and otherwise assisting in trial preparation. The use of a paralegal is a common method of cost savings for clients. In the Seventh Circuit, separate billing rates for paralegals is well recognized. See, Spanish Action Committee of Chicago v. City of Chicago, 811 F.2d 1129, 1138 (7th Cir. 1983). As the Supreme Court noted in Missouri v. Jenkins, 491 U.S. 274, 286 (1989):

All else being equal, the hourly fee charged by an attorney whose rates include paralegal work in her hourly fee, or who bills separately for the work of paralegals at cost, will be higher than the hourly fee charged by an attorney competing in the same market who bills separately for the work of paralegals at "market rates."

With respect to travel time for both Petitioner's counsel and her paralegal, "the exclusion of out-of-town counsel's travel time is proper only if it was unreasonable not to hire qualified local counsel.." Gruber v. Sec'y of Health & Human Servs., 91 Fed.Cl. 773, 789 (2010) (quoting Johnson v. Univ. Coll. of Univ. of Ala. In Birmingham, 706 F.2d 1205, 1208 (11th Cir. 1983). An action brought under ICARA is a particular type of case, where the services of an attorney skilled in the subject matter is critical. Laura Dale, trial counsel for the Petitioner, states in her affidavit that more than one third of her practice involves multi-jurisdictional conflicts, including Hague Convention and ICARA cases. (Ex H, Doc. 60)

Moreover, the evidence revealed that the Respondent came to the Southern District of Illinois in an unusual manner. Initially, after arriving in the United States from Sweden with the minor child, she took him to the South Texas area, where she had previously resided, and where she had some friends and family ties. This is also the area of the country where Petitioner's counsel is located. Shortly thereafter, Respondent moved herself and the minor child, J.R., to the Southern District of Illinois despite having no family ties here, no job in this area, no residence in the area (she lived with various "friends" during the time in question) and no clear connections to the area. She testified that she had a "friend of a friend" in the area (who happens to be a local attorney -- but who did not enter his appearance in this case). Respondent would have the Court find that once it was determined that Respondent had been located in this District, Ms. Dale, who by that time had been in the case for more than a month, should have turned over the case to local counsel. The Court is not persuaded by this argument. It was reasonable, given Petitioner's counsel's familiarity with this case, and the type of action, and the fact that Respondent chose to come to this District, to expect counsel to continue to represent the Petitioner in this case.

Under Seventh Circuit law, travel expenses for out of town counsel are not, per se, excludable. "[R]easonable attorneys' fees presumptively include reasonable travel time billed at the same hourly rate as the lawyer's normal working time." Sweet v. Corp. Receivables, Inc., No. 05-CV-0779, 2008 WL 29535372 ...


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